Judge: Yolanda Orozco, Case: 21STCV22619, Date: 2022-07-27 Tentative Ruling
Case Number: 21STCV22619 Hearing Date: July 27, 2022 Dept: 31
DEMURRER WITH MOTION TO STRIKE SUSTAINED, IN PART
Background
On June 17, 2021, Plaintiff Shane Moshiri filed this instant action against Los Angeles Community College District; Los Angeles Valley College; Barry Gribbons; and Does 1 to 100.
On March 9, 2022, Plaintiff filed a Second Amended Complaint. The operative SAC alleges:
1. Discrimination in Violation of the FEHA
2. Hostile
Work Environment Harassment in Violation of the FEHA
3. Retaliation
in Violation of the FEHA
4. Failure
to Prevent Discrimination, Harassment, or Retaliation in Violation of the FEHA
5. Whistleblower Retaliation (Labor Code § 1102.5)
On March 12, 2022, Defendant Los Angeles Community College District (“District” or “Defendant”) filed a Demurrer with Motion to Strike Plaintiff’s SAC. Plaintiff filed opposition papers on July 14, 2022. Defendant filed a Reply on July 20, 2022.
Defendant Barry Gribbons also filed a Demurrer with Motion
to Strike. The hearing for Gribbons demurrer is scheduled for August 26, 2022.
Meet and Confer
Requirement
Counsel for Defendant District and Gribbons attests that she
sent a meet and confer letter on April 4, 2022 outlining Defendants’ intent to
demur to Plaintiff’s SAC and move to strike portions of Plaintiff’s SAC.
(Stein-Manes Decl. ¶ 4, Ex. 1.) On April 2, 2022, Plaintiff’s counsel, Zachary
Lynch stated that Plaintiff maintains that his pleading in the SAC is
sufficient. (Stein-Manes Decl. ¶ 4, Ex. 2.) Thus, the meet and confer requirements for
filing a demurrer or motion to strike have been met. (See CCP § 430.41.)
Legal Standard
A demurrer for sufficiency tests whether the complaint states a cause of action. (See Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Wilson v. Transit Authority of City of Sacramento (1962) 199 Cal.App.2d 716, 720-21.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleading alone, and not on the evidence or facts alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Id.) However, it does not accept as true deductions, contentions, or conclusions of law or fact.¿(Stonehouse Homes LLC v. City of Sierra Madre (2008) 167 Cal.App.4th 531, 538.) A demurrer may be sustained “only¿if the complaint fails to state a cause of action under any possible legal theory.” (Sheehan v. San Francisco 49ers, Ltd.¿(2009) 45 Cal.4th 992, 998.)¿
Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (Code of Civ. Proc., § 435(b)(1); Cal. Rules of Court (CRC), Rule 3.1322(b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (Code of Civ. Proc., § 436, subds. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)¿¿¿
“Where the defect raised by a motion to
strike or by demurrer is reasonably capable of cure, leave to amend is
routinely and liberally granted to give the plaintiff a chance to cure the
defect in question.” (CLD Construction, Inc. v. City of San Ramon (2004)
120 Cal.App.4th 1141, 1146.)The burden is on the complainant to show the Court that a
pleading can be amended successfully. (Goodman v. Kennedy (1976) 18
Cal.3d 335, 348.)¿¿
Discussion
Plaintiff was employed by Los Angeles Community College District and Los Angeles Valley College prior to being discharged from his job as a part-time lecturer. Plaintiff alleges that he suffered discrimination, retaliation, and harassment due to his age.
Plaintiff alleges that prior to Aril 27, 2018, for nearly 30 years Plaintiff had never received a single negative performance review until Chairman Tyler Prante attended Plaintiff’s class for the first time. (SAC ¶ 12.) Afterwards, Plaintiff was given a negative performance review. (SAC ¶ 14.) Plaintiff alleges that he believed the negative performance review was due to his age (being over 40 years old). The review stated that Plaintiff did not stimulate student’s interest, did not meet classes at specified hours, and did not evaluate students upon the specified criteria. (SAC ¶¶ 14, 17.) Plaintiff alleges that in over three decades of employment with Defendant, he had not received a negative job performance review and was not aware of younger faculty members being accused of or cited for similar performance issues as Plaintiff. (SAC ¶ 18.)
Plaintiff viewed the evaluation as a harassing and
discriminatory act. (SAC ¶¶ 18-22.) Plaintiff states that due to his opposition
to the evaluation and his claims of discrimination and harassment, Plaintiff
was eventually terminated. (SAC ¶ 24, 25.)
1. Demurrer
Defendant Los Angeles Community College District (“District” or “Defendant”) demur to Plaintiff’s first through fifth causes of action and seek to strike Plaintiff’s request for punitive damages.
First Cause of Action: Discrimination Based on
Age under FEHA
In order to make out a prima facie case of age discrimination under FEHA, a plaintiff must present evidence that the plaintiff (1) is over the age of 40; (2) suffered an adverse employment action; (3) was performing satisfactorily at the time of the adverse action; and (4) suffered the adverse action under circumstances that give rise to an inference of unlawful discrimination, i.e., evidence that the plaintiff was replaced by someone significantly younger than the plaintiff.” (See Sandell v. Taylor-Listun, Inc. (2010), 188 Cal.App.4th 297, 321.)
Defendant alleges that Plaintiff fails to state a cause of action for discrimination on the bases of age under FEHA and the cause of action is uncertain. Specifically, Defendant states Plaintiff fails to include any facts, such as comments, statements, or other tangible actions or harassing conduct made by Defendant. Moreover, Defendant asserts that Plaintiff fails to articulate facts as to how he knew or had access or knowledge about the confidential evaluations of his colleagues.
Plaintiff’s belief that the performance evaluation had a discriminatory animus was based on his observation that younger employees who made alleged protected complaints were not treated with similar scrutiny as Plaintiff. (SAC ¶ 30.) Additionally, Plaintiff attributes the criticism that he was “not engaging students” to be attributable to his age. (SAC ¶¶ 18, 30.)
The Court finds that Plaintiff has alleged sufficient facts to support a cause of action for discrimination based on age. Plaintiff has alleged that he is (1) over the age 40, (2) suffered an adverse employment action when he was fired, (3) for 30 years Plaintiff had been performing satisfactorily, and (4) Plaintiff suffered an adverse action under circumstances that give rise to an inference of unlawful discrimination because of Plaintiff’s belief that the comment he was not engaging students was false and targeted his age, that his complaints and concerns to his employer that the evaluation was discriminatory was met with increased scrutiny and hostility over which he was fired. In other words, Plaintiff believed that the negative performance evaluations were pretextual.
Therefore, the demurrer to the first cause of action is OVERRULED.
Second Cause of Action: Hostile Work
Environment Harassment on the Basis of Age under FEHA
“To establish a prima facie case of a hostile work environment, [the plaintiff] must show that (1) [plaintiff] is a member of a protected class; (2) [plaintiff] was subjected to unwelcome harassment; (3) the harassment was based on [plaintiff’s] protected status; (4) the harassment unreasonably interfered with [plaintiff’s] work performance by creating an intimidating, hostile, or offensive work environment; and (5) defendants are liable for the harassment.” (Ortiz v. Dameron Hospital Assn. (2019) 37 Cal.App.5th 568, 581.) Harassment includes epithets, derogatory comments or slurs. (Dee v. Vintage Petroleum, Inc. (2003) 106 Cal. App. 4th 30, 35.) California Courts have been guided in their interpretations of FEHA by the federal court decisions interpreting Title VII of the federal Civil Rights Act. (Id.) To prove a claim under Title VII, the harassment must be sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment. (Id.)
Defendant
correctly asserts that Plaintiff’s negative job performance review is
insufficient evidence of harassment. In Janken v. GM Hughes
Electronics (1996), the Appeal Court specified that:
“As the regulation implies, harassment consists of a type of conduct not necessary for performance of a supervisory job. Instead, harassment consists of conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives. Harassment is not conduct of a type necessary for management of the employer's business or performance of the supervisory employee's job.”
(46 Cal.App.4th 55, 63.)
Plaintiff has failed to articulate facts to show he was subjected to unwelcome harassment or that the harassment unreasonably interfered with Plaintiff work performance by creating an intimidating, hostile, or offensive work environment or that Defendant was liable for the harassment. Moreover, Plaintiff has failed to show that any alleged harassment was severe or pervasive.
Therefore, Defendant’s demurrer to the second cause of action is SUSTAINED, with leave to amend.
Third Cause of
Action: Retaliation for Engaging in a Protected Activity Under FEHA
Defendant asserts that Plaintiff has failed to plead sufficient facts to sustain a cause of action for retaliation under FEHA. To establish a prima facie case of retaliation, a plaintiff must show the following: (1) the plaintiff engaged in a protected activity; (2) the plaintiff was thereafter subjected to adverse employment action by his employer, and (3) there was a causal link between the two. (Addy v. Bliss & Glennon (1996) 44 Cal. App. 4th 205, 217.) An employee engages in protected activity when they have “opposed any practices forbidden under [the FEHA] or because the person has filed a complaint, testified, or assisted in any proceeding under [the FEHA].” (Gov. Code, § 12940, subd. (h).)
Plaintiff alleged protected activities included (1) submitting a “rebuttal outlining why the allegations” regarding his performance were “false;” (2) submitting an additional complaint to the Comprehensive Evaluation Committee in November 2019 expressing why he believed the allegations were false and were further acts of discrimination and harassment on the basis of age and/or retaliation; and (3) in December 2019, when he met Dr. Gibbons, Plaintiff reiterated that the allegations about his performance were “false and were inconsistent with Defendants’ customary policies and procedures.” (SAC ¶¶ 18, 21-22.)
The facts as plead are sufficient to show that Plaintiff allegedly engaged in a protected activity when he informed Defendant that he believed the performance reviews were false and an act of discrimination and retaliation. (SAC ¶¶ 18, 21.) Plaintiff further alleges that he was subject to an adverse employment action when he was removed from the seniority list and understood that the removal was grossly disproportionate to the alleged performance issues. (SAC ¶ 24.) Plaintiff asserts that his termination was pretextual and he was fired due his age despite Plaintiff’s history of strong performance. (SAC ¶¶ 21, 27.)
The Court finds that Plaintiff has articulated sufficient facts to support a cause of action for retaliation under FEHA. Defendant’s demurrer to Plaintiff’s third cause of action is OVERRULED.
Fourth Cause of Action: Failure to
Prevent Discrimination, Harassment, or Retaliation under FEHA
FEHA makes it unlawful employment practice “[f]or an employer ... to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.” (Cal. Gov't Code § 12940(k).)
Defendant asserts that because Plaintiff cannot plead facts to sustain a cause of action for discrimination, harassment or retaliation under FEHA, the fourth cause of action for failure to prevent discrimination and retaliation also fails. (See Dickson v. Burke Williams, Inc. (2016) 234 Cal.App.4th 1307, 1315-1317.)
Defendant’s demur to Plaintiff’s cause of action for discrimination based on age was overruled, but the cause of action for harassment was sustained. Therefore, Defendant’s demurrer to the fourth cause of action is OVERRULED as to the discrimination claim and SUSTAINED as to harassment claim, with leave to amend.
Fifth Cause of Action: Whistleblower
Retaliation under Labor Code Section 1102.5
Defendant asserts that Plaintiff fails to state sufficient facts to support a cause of action under Labor Code Section 1102.5.
“The elements of a section 1102.5(b) retaliation cause of action require that (1) the plaintiff establish a prima facie case of retaliation, (2) the defendant provide a legitimate, nonretaliatory explanation for its acts, and (3) the plaintiff show this explanation is merely a pretext for the retaliation. [Citation omitted].” (Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 711.) Recently, the California Supreme Court recently explained that:
“Section 1102.5 provides whistleblower protections to employees who
disclose wrongdoing to authorities. As relevant here, section 1102.5 prohibits
an employer from retaliating against an employee for sharing information the
employee ‘has reasonable cause to believe ... discloses a violation of state or
federal statute’ or of ‘a local, state, or federal rule or regulation’ with a
government agency, with a person with authority over the employee, or with
another employee who has authority to investigate or correct the violation. (§
1102.5, subd. (b).) ‘This provision,’ we have explained, ‘reflects the broad
public policy interest in encouraging workplace whistle-blowers to report
unlawful acts without fearing retaliation.’ [Citation].”
(Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 709.)
Plaintiff alleges that he raised complaints about actual and/or potential illegality including violations of FEHA, and the California Constitution and Government Code Section 12900. (SAC ¶ 71.) However, Plaintiff fails to state with specificity what information was disclosed, to whom it was disclosed, and if the information was disclosed “to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance.” (Lab. Code § 1102.5(b).) Without this information, Defendant cannot determine if the alleged disclosure is covered under Section 1102.5.
Defendant’s demurrer to the fifth cause of action is SUSTAINED with leave to amend.
2. Motion to Strike
Defendant seeks to strike the following portions of Plaintiff’s SAC because they are irrelevant and reference additional protected characteristics other than age. Plaintiff partially opposed Defendant’s demurrer regarding references to engaging in a protected activity pertaining to the third cause of action.
Therefore, the request to strike the following without leave to amend is GRANTED:
1. “abuse of the requirements of accommodation and engaging in the interactive process,” (Compl. at p. 9, ¶ 37, lines 6-7.)
2. “abuse of the requirements of accommodation and engaging in the interactive process,” (Compl. at p. 9, ¶ 38, lines 13-14.)
3.
“and/or other protected characteristics” (Compl.
at p. 11, ¶ 50, lines 11-12.)
4. “or otherwise engaging in activity protected by the FEHA, including seeking to exercise rights guaranteed under the FEHA and/or assisting and/or participating in an investigation, opposing defendants’ failure to provide rights, including rights to . . assist in a lawsuit. . . .” (Compl. at p. 12, ¶ 57, lines 10-14.)
Conclusion
Defendant Los Angeles Community College District’s demurrer to Plaintiff’s SAC is OVERRULED as to the first cause of action for discrimination and the third cause of action for retaliation under FEHA.
The demurrer is SUSTAINED with 20 days leave to amend as to the second cause of action for Hostile Work Environment, and the fifth cause of action for Whistleblower Retaliation under Labor Code Section 1102.5.
The fourth cause of action for failure to prevent Discrimination, Harassment, or Retaliation is OVERRULED as to the Discrimination claim but SUSTAINED with 20 days leave to amend as to the harassment claim
Defendant’s Motion to Strike is GRANTED WITHOUT LEAVE TO AMEND as to request numbered 1 to 3 but DENIED as to request number 4.
Moving party to give notice.
The
parties are strongly encouraged to attend all scheduled hearings virtually or
by audio. Effective July 20, 2020, all matters will be scheduled virtually
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